As stated the check is a civil lawsuit on the basis that there was no probable cause. Further any evidence turned up in a search that didn't have probable cause is inadmissible. If you're asking if there is an immediate check in the moment there isn't. Again the reason for this power is a situation such that if an LEO here's someone shouting from inside a house, "I'm being murdered!" they can enter that house without a warrant. The Courts and it's in the 4th Amendment itself have recognized this situation. That there are certain situations in order to stop a crime that LE can enter or conduct a search without a warrant based on probable cause. On the "I smell.." I would go back and say that legalized mar1juana would remove the legal argument that they could conduct a search on that basis. It would be like saying an LEO could conduct a search based on "I smell cupcakes.." They can't because possessing cupcakes isn't illegal. I'm stating the general reason for these rules. I can agree that in this case it probably wasn't necessary to ask Derrick to step out of the car just as it wasn't necessary to tell Sandra Bland to step out of the cars. That doesn't change that these actions are legal and there are good reasons for it. The danger here is taking this case or the Sandra Bland case and then saying that LE shouldn't be able to legally order anyone out of the car.
assuming the officer is justified to order the motorist to step out of his vehicle and the motorist refuses can the officer arrest the motorist or whoop his ass?
No one is saying that a cop can't legally order someone to get out of a car when the proper conditions are met. And yes evidence that is obtained through illegal methods such as an illegal search is inadmissible but my point is that the "I smell weed" excuse has no check on it where it can lead to evidence being inadmissible because there is no way to prove a cop lied about smelling something. Basically we gave the cops the power to violate the 4th amendment without a check. Unless you can show me how one can prove a cop lied about smelling something. Smelling something should have never been a criteria for probable cause because it has no ability to be checked. Cops have impunity to just walk into your house or car for no reason. All they have to do is say "I smell weed". That's all they have to do and now they are legally justified to suspend 4th amendment rights. You good with that?
I've seen some of the civil rights training people of color dealing with LE and it does say that people should comply with orders such as, show your hands, stay in the car, or get out of the car. What I've seen is that you shouldn't voluntary anything or do any actions unless the LEO specifically orders you too. If you don't agree what you should say is "I do not consent to this" That shows that even though you are complying with the order your're not giving up your 5th Amendment right in case of something incriminating and also puts the burden on the LEO to show why they had probably cause to make an order or conduct a search.
Where do you draw the line then? If an LEO pulls someone over for speeding and smells alcohol should the LEO then be able to order the person out of the car and conduct a DUI test? I fully agree this is a power that is abused frequently but there is a very good reason it is there.
You actually already gave up your 4th amendment rights the moment we allowed cops to search based on smell. There is no mechanism to disprove their claim. Therefore that right doesn't exist. Even if weed isn't found you still can't disprove that a cop smelled weed. It's a unchecked power they have.
Yes the LEO can arrest a motorist who doesn't comply with a lawful order. Whoop their ass not if they're not physically resisting.
The officer should be able to visibley see impared driving ot impaired mannerisms that can be proven through video evidence. For example, passed own in a Wendy's drive thru and freezing the drive thru line is probable cause. It can easily be video taped and proven. Again, any reason for probable cause must have the ability to be tested for accuracy. Otherwise there is no check. Something like smell should never be used to justify halting of 4th amendment rights. You can't test the validity of a claim of smell.
at that point was the motorist physically resisting? when the LEO threatened him with grave bodily harm?
This is the danger of generalization based on inductive reasoning. You're looking a narrow situation regarding smelling weed to generalize towards the overall 4th Amendment probable cause. The danger in this is that a probably cause search based on smell has much more implication than just mar1juana. An LEO could have probable cause of a DUI if they smell alcohol. Could have probable cause for arson if they pull a vehicle over near a suspicious fire and smell gasoline. Could have probable cause of murder if they pull a vehicle over near a shooting and smell gunpowder. The argument regarding conducting a search based on smelling weed is to reform mar1juana laws. Not say that smell doesn't qualify as probable cause .
Disagree. I believe any probable cause given to search a citizen must have the ability to be tested for its validity in a court of law. Smell cannot therefore should not be used as a reason to search as it is a unchecked power as there is no ability to disprove the claim. There is no mechanism to stop a cop from abusing that power with impunity. If you can find a way to test the claim of an officer's smell then they can have that power but without a check, that's a hard no for me.
This is really where it get's subjective and is largely where many of these use of force cases get are the stickiest. At one end you have George Floyd cuffed and on the ground. At the other end you have Rashard Brooks wrestling and taking a tazer away from the LEO. While there is an argument whether Brooks should've been shot with a firearm there isn't much argument that he was violently resisting. In this case I don't know. What we can see cuts off when the LEO puts his hands on Derrick. We don't see what Derrick's response is to it.
Again, how is an officer that smells alcohol during a traffic stop going to legally conduct a DUI if they can't rely upon smell? Would the LEO have to contact a judge get a warrant? For that matter could the LEO state that the basis for asking for the warrant is that he smelled alcohol? Again, you're making an argument based upon a narrow circumstance that would affect many other circumstances..
They can rely on mannerisms, slurred speech, driving behavior so on and so forth. Do you believe authority should have a mechanism for checks on said authority? Supreme Court judges have to look at "narrow circumstances" also. A judge should ask whether there is a ability to test the validity of a claim of a smell. If there is no mechanism to test for it or disprove the claim, we should not give that authority to law enforcement because then there is no check on the power.
Except that alcohol and any other drug take awhile to be metabolized you could have someone who is actually drunk and driving but not yet feeling the effects. An LEO is well within the law to pull over and detain someone if they have probable cause, in this case smell, even if they don't witness them driving impaired. I think if an LEO didn't conduct a DUI test and allowed someone to drive even though they smelled alcohol and that person later got in a crash would be the height of irresponsibility and the victims of that crash would have a very good reason for suing.
Would you rather be detained for an indefinite amount of time while they acquire a warrant ? Or just comply ? Even if protesting that action ?
That doesn't justify giving law enforcement carte blanche to violate the 4th amendment. We don't live in a world of Minority Report. If a cop sees a husband cussing our his wife in public, does that mean he should arrest him because there is a chance he probably commits domestic violence behind closed doors? Does that mean the officer should feel guilty that he didn't detain him for cussing out his wife in public and hearing a week later he murderers her? No, a cop shouldn't pull someone over for probable DUI when they see behavior that matches that of someone driving while intoxicated. That's what living in a society that has checks on authority looks like.
